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Schriner v. Schriner

Court of Appeals of Nebraska

October 24, 2017

Cecil Scott Schriner, appellee,
Sara Jane Schriner, appellant.

         1. Child Custody: Appeal and Error. An appellate court reviews child custody determinations de novo on the record, but the trial court's decision will normally be upheld absent an abuse of discretion.

         2. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court bases its decision upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         3. Visitation: Appeal and Error. Parenting time determinations are also matters initially entrusted to the discretion of the trial court, and although reviewed de novo on the record, the trial court's determination will normally be affirmed absent an abuse of discretion.

         4. Child Custody: Appeal and Error. In child custody cases, where the credible evidence is in conflict on a material issue of fact, the appellate court considers, and may give weight to, the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

         5. Modification of Decree: Attorney Fees: Appeal and Error. In an action for modification of a marital dissolution decree, the award of attorney fees is discretionary with the trial court, is reviewed de novo on the record, and will be affirmed in the absence of an abuse of discretion.

         6. Appeal and Error. To be considered by an appellate court, an error must be both specifically assigned and specifically argued in the brief of the party asserting the error.

         7. Trial: Appeal and Error. The conduct of final argument is within the discretion of the trial court, and a trial court's ruling regarding final argument will not be disturbed absent an abuse of discretion.

         8. Visitation. The best interests of the children are the primary and paramount considerations in determining and modifying parenting time.

         [25 Neb.App. 166] 9. __ . The right of parenting time is subject to continuous review by the court, and a party may seek modification of a parenting time order on the grounds that there has been a material change in circumstances.

         10. Modification of Decree: Words and Phrases. In the context of marital dissolutions, a material change in circumstances means the occurrence of something which, had it been known to the dissolution court at the time of the initial decree, would have persuaded the court to decree differently.

         11. Modification of Decree: Proof. The burden is upon the party seeking the modification of decree to show that there has been a material change of circumstances.

         12. Child Custody. Pursuant to Neb. Rev. Stat. § 43-2929(1)(b)(ix) (Reissue 2016), the parenting plan shall include provisions for safety when a preponderance of the evidence establishes child abuse or neglect, domestic intimate partner abuse, unresolved parental conflict, or criminal activity which is directly harmful to a child.

         13. Attorney Fees. Customarily, attorney fees are awarded only to prevailing parties or assessed against those who file frivolous suits.

         14. __ . In awarding attorney fees, a court should consider the nature of the case, the amount involved in the controversy, the services actually performed, the results obtained, the length of time required for preparation and presentation of the case, the novelty and difficulty of the questions raised, and the customary charges of the bar for similar services.

         Appeal from the District Court for Franklin County: Stephen R. Illingworth, Judge. Affirmed.

          Sara Jane Schriner, pro se.

          Kristi L. Hilliard and Michael R. Snyder, of Snyder, Hilliard & Cochran, L.L.O., for appellee.

          Moore, Chief Judge, and Pirtle and Bishop, Judges.

          Bishop, Judge.

         Sara Jane Schriner appeals from the decision of the district court for Franklin County reducing her parenting time, restricting her participation in routine health-related appointments of the parties' children, ordering her to attend an anger management course and counseling, and ordering her to pay $7, 500 of her ex-husband's attorney fees. We affirm.

         [25 Neb.App. 167] BACKGROUND

         Cecil Scott Schriner and Sara were married in 2005. Two children were born during their marriage-one son in 2007 and another son in 2009. Sara also had two teenage children from a prior relationship.

         In February 2014, the district court entered a decree dissolving the parties' marriage. The decree indicates that during the marriage, the parties had resided on a farm, and that Cecil was a grain farmer and Sara had worked in the U.S. postal system but resigned in November 2009 to be a "stay at home mother.'' The district court awarded Cecil legal and physical custody of the parties' two children, subject to Sara's parenting time every Tuesday and Thursday evening (after school until 7:30 p.m.) and on alternating weekends (Friday after school until 5:30 p.m. on Sunday). Sara was also to get 6 consecutive weeks of parenting time every summer, during which Cecil would get parenting time on alternating weekends. Sara was ordered to pay child support in the amount of $617 per month. Sara appealed, and in an unpublished memorandum opinion, this court affirmed the district court's decision regarding custody, but reversed and remanded the child support determination for further proceedings. See Schriner v. Schriner, 22 Neb.App. xxv (No. A-14-371, May 22, 2015). Our mandate issued on October 29, 2015. On November 23, the district court's order on mandate was filed and ordered that Sara pay child support in the amount of $321 per month, beginning on February 1, 2014. There were further pleadings, orders, and two more appeals regarding child support (both dismissed for lack of jurisdiction) that need not be discussed here as they are not relevant to the current appeal.

         On December 3, 2014, prior to the custody portion of the decree being affirmed on appeal, Sara filed a complaint for modification of parenting time. She alleged that since the entry of the decree in February, there had been a material and sub stantial change in circumstances justifying a modification of parenting time, specifically: Cecil applied to and was accepted [25 Neb.App. 168] by the "LEAD 34 program, " a 2-year program "operated by a non-profit Nebraska Agricultural Leadership Council" in cooperation with other "institutions of higher learning throughout Nebraska"; the program began in September and included "extensive time away from home"; Cecil refused to allow Sara the right of first refusal for parenting time during his participation in the LEAD program; Cecil refused to notify Sara in advance of the children's medical and other appointments in such a manner that she could attend the appointments; Cecil continually refused to have any discussions regarding the health of the children; Cecil refused to notify Sara of the children's activities in such a manner that would allow her to attend the activities; Cecil refused to provide Sara with information regarding the preschool that the younger child attended; and Cecil refused to provide the names and contact information for the children's daycares, daycare providers, or nannies. Sara asked the court to enter an order modifying her parenting time, ordering Cecil to notify her of all of the children's appointments and activities, ordering Cecil to provide names and contact information for all childcare providers, and awarding attorney fees and costs to her.

         On January 26, 2015, Cecil filed an answer and "Cross-Complaint." In his answer, he alleged that Sara's complaint was frivolous and that she is able to pay his attorney fees for a frivolous action and should be ordered to pay his fees and court costs. In his "Cross-Complaint, " Cecil alleged that since the entry of the divorce decree, there had been a material change in circumstances that justified a modification of the parenting time. He alleged that Sara had (1) engaged in a pattern of taking out her anger at Cecil in front of their children; (2) engaged in a course of action where she willfully and intentionally "poison[ed] the mind[s]" of their children; (3) made false accusations about Cecil to and in front of their children in an attempt to make them angry or prejudice them against Cecil; (4) engaged in disruptive behavior in front of their children at parenting time exchanges, medical [25 Neb.App. 169] appointments, public outings, and other events; (5) engaged in behaviors wherein she set Cecil up for failure, embarrassment, or frustration in front of their children or others; and (6) failed and refused to cooperate with parenting time adjustments and used the frequency of the exchanges to send "harassing and annoying" text messages to Cecil. Cecil asked the court to modify the parenting time schedule to "a standard every other weekend schedule or another similar schedule." He also asked the court to enter additional orders "regarding behavior parameters and guidelines that should be met by the parties when co-parenting [the] children including notification procedures, and contempt procedures for behaviors that tend to or attempt to poison the minds of the minor children." In his amended "Cross-Complaint" filed on June 22, Cecil also alleged that a material change in circumstances had occurred, because Sara was picking the children up from school without his knowledge or consent and because she refused to allow the children to participate in activities during her parenting time. He also requested that the district court restrict Sara's participation in the children's medical care and extracurricular activities.

         Trial on both parties' complaints to modify parenting time was held on March 9 and May 4, 2016. Sara appeared pro se, and Cecil was represented by counsel.

         Cecil testified that he has had temporary custody of the boys since May 2011 (when they were 2 and 4 years old) and that he was granted full custody in January 2014. At the time of the divorce, Cecil proposed a parenting plan allowing for Tuesday and Thursday midweek parenting time because a presenter at his required "divorce class" "suggested heavily that children under the age of kindergarten never go more than three days without seeing their other parent." By the time of the modification hearing, the boys were 7 and 8 years of age. Cecil and Sara have mediated twice since the decree, but the parties have had ongoing conflict. Both parties testified regarding their struggles.

         [25 Neb.App. 170] Sara testified that in July 2014, Cecil was given the opportunity to go back to school when he was accepted to the LEAD program. From July to December, Sara requested the dates of the program and asked to have the boys on those days, but Cecil refused. Cecil also refused to tell Sara who was watching the boys during that time. Sara said that from September 2014 to March 2016, there were "over 45 nights" that Cecil was at LEAD program seminars, but Sara had the boys less than half of those nights. "So, the main reason for me filing for more time with the boys was because [Cecil] was not going to be in the state, country or around the area, and it would have been a great opportunity to allow me to have that time."

         Cecil testified that the LEAD program began in August or September of 2014 and lasted until March 2016. It was basically seminars, most of them lasting 3 days from Sunday to Tuesday, and then there were two 2-week seminars. He had given Sara more than 20 extra overnight parenting times when he attended the LEAD seminars, but he said she still "demand[ed]" more time; she never wanted to "trade weekends, " and she only wanted extra weekends. Over the past 2 years, Cecil had attempted to make a "reasonable trade" with Sara more than 20 times, for the LEAD program or at Christmastime, but she refused (even if he was trading 5 days for 1). Cecil did not tell Sara specifically where the boys would be each time he left town for the LEAD program, but "[t]hey're either with me or they're with my parents, " and testified that Sara knows that. He also said he does not specifically tell her where the boys will be because she is "so harassing and burdensome." When Sara asked him to give examples of dates and times when she was "harassing and burdensome, " Cecil responded, "I don't catalog and mark down on a calendar every time you followed me home or bothered my friends or family, stopped in unexpectedly or unannounced like you do."

         [25 Neb.App. 171] Cecil testified that he does not want to allow Sara to have the "first right of daycare" and that he believes she wants the children anytime they are not under his direct supervision. He said Sara sends text messages "hammering me that it's wrong for me to send them to my parents or to my sister's for some play time when she wasn't notified first and that she should have them first and not somebody else." Cecil said that the boys need to be involved with ...

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